Citation Nr: 1827451
Decision Date: 05/03/18 Archive Date: 05/14/18
DOCKET NO. 14-18 201 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California
THE ISSUE
Entitlement to burial benefits and/or reimbursement of funeral costs.
ATTORNEY FOR THE BOARD
R. Williams, Counsel
INTRODUCTION
The Veteran served on active duty from March 1974 to February 1976. He died in June 2011. The Appellant is the Veteran's father.
This matter is before the Board of Veterans' Appeals (Board) on appeal of a decision in April 2013 of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.
The Board remanded this claim in September 2015. The case is now returned for appellate review. Unfortunately, for the reasons described below, the case must be remanded again.
The issue of entitlement to reimbursement for private medical costs will be adjudicated separately.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The appellant contends that burial benefits and reimbursement of funeral costs are warranted. In September 2015, the Board remanded the claim to allow for development and adjudication of the intertwined case of entitlement to benefits under 38 U.S.C. § 1151.
Specific to claims for burial benefits, a burial allowance is payable under certain circumstances to cover the burial and funeral expenses of a veteran and the expense of transporting the body to the place of burial. 38 U.S.C. § 2302; 38 C.F.R. § 3.1600.
Burial benefits may be paid if a person dies from nonservice-connected causes while "properly hospitalized" by VA (in a VA or non-VA facility). 38 C.F.R. § 3.1600(c) (2017). "Properly hospitalized by VA" means admission to a VA facility for hospital, nursing home, or domiciliary care under the authority of 38 U.S.C. § 1710 or § 171(a); admission (transfer) to a non-VA facility for hospital care under the authority of 38 U.S.C. § 1703; admission (transfer) to a nursing home under the authority of 38 U.S.C. § 1720 for nursing home care at the expense of the United States; or admission (transfer) to a State nursing home for nursing home care with respect to which payment is authorized under the authority of 38 U.S.C. § 1741. If a veteran dies en route while traveling under proper prior authorization and at VA expense to or from a specified place for purpose of examination, treatment, or care, burial expenses will be allowed as though death had occurred while properly hospitalized by VA. 38 C.F.R. § 3.1605 (a) (2017).
While on remand, the AOJ obtained treatment records from the Citrus Memorial Hospital indicating he was admitted on June 21, 2011. However, it appears that these records were submitted by the appellant and it is unclear if the entire medical records from Citrus Memorial are in the claims file. Further, additional VA treatment records received dated June 23, 2011 reflect that the Veteran may have had a procedure done at VA on that date.
Administrative notes dated June 21, 2011 through June 24, 2011, but entered in July 2011 and September 2011, indicate that the FEE service requested has been completed regarding "AMB," "ER," and inpatient at Citrus Memorial. Specifically, they state that "[t]he FEE service requested has been completed. . . . The procedure results have been scanned in and the image attached to this note. To see this image, open Imaging located on Tools menu and select this image from the palette."
Those scanned-in documents are not part of the record before the Board. Because they are not a part of the record, the Board has no way to review them to determine whether they are favorable on any of the material issues of fact in the case. As they are facially labeled as pertaining to the "Fee service," however, they appear relevant. Accordingly, upon remand, those records must be associated with the claims file.
As noted in the Introduction, the Veteran has a separate claim for reimbursement of medical expenses which was denied in a December 2011 decision of the VAMC in Gainesville, Florida. Pursuant to a separate September 2015 remand, that claim was readjudicated in January 2018 Supplemental Statement of the Case (SSOC) which continued the prior denial of reimbursement for medical expenses. The Board notes that the December 2011 decision regarding medical reimbursement and any further associated records, to include those relied upon by the Gainesville VAMC are not in the Veteran's claims file, however they are relevant. Of note, it appears that a paper file associated with the claim for reimbursement of medical expenses is outstanding and needs to be scanned and uploaded into the electronic file.
In light of the missing records and as is unclear to what extent the Veteran was treated by VA prior to his death; remand is appropriate to obtain the missing procedural records and any outstanding VA and non-VA treatment records as well.
Accordingly, the case is REMANDED for the following action:
1. Locate the Veteran's medical reimbursement folder to include a copy of the December 2011 denial of medical reimbursement and any associated records. Scan and upload a legible copy of all such records to Veteran's electronic claims file. All appropriate efforts should be taken to obtain such records. If such records cannot be located, explain why.
2. Obtain all outstanding VA treatment records from 2011 pertaining to fee service, to include non-electronic and/or archived paper records that are identified as having been "scanned in" to his record.
All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The appellant must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).
3. Contact the appellant and ask him to provide information concerning where the Veteran died (i.e., at a VA Medical Center for hospital, nursing, or domiciliary care, a non-VA facility for hospital care, or a nursing home). Once signed releases are received from the appellant, obtain all private treatment records for the Veteran dated prior to his death which have not been obtained already, to include the Citrus Memorial Hospital records dated from June 22, 2011 to June 25, 2011. Ensure a legible copy of the Veteran's death certificate is associated with any request to Citrus Memorial Hospital. A copy of any records obtained, to include a negative reply, should be included in the claims file.
4. Review all evidence received since the last prior adjudication and readjudicate the appellant's claim, to include consideration of whether the Veteran died while properly hospitalized by VA. If the determination remains unfavorable to the appellant, then the AOJ should issue a Supplemental Statement of the Case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the appellant. Thereafter, the case should be returned to the Board for further appellate consideration, if in order.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).
_________________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).